Headlines

Summary

Department of State's Visa Bulletin for January 2019 shows significant progress in the EB-1 category for all chargeability areas, as well as in the EB-3 and Other Workers India categories. Other priority dates remain Current or backlogged with little to no movement.

The proposed legislation would give eligible Irish nationals the opportunity to work in the United States under the nonimmigrant E-3 visa category, previously reserved only for Australian nationals under a trade agreement with the United States.

To qualify for IMAGE certification, companies agree to conduct a self-assessment of their hiring practices to uncover vulnerabilities; enroll in E-Verify; train staff on IMAGE Best Employment Practices and the use of new screening tools; and undergo a Form I-9 audit by ICE.

The Department of State’s Visa Bulletin for January 2019 shows significant progress in the EB-1 category for all chargeability areas, as well as in the EB-3 and Other Workers India categories. Other priority dates remain Current or backlogged with little to no movement.

Continuing its policy since the September 2018 Visa Bulletin, U.S. Citizenship and Immigration Services (USCIS) confirmed that adjustment-of-status applications may be filed based on the filing cut-off dates rather than the final action cut-off dates.

Many applicants and their dependent family members physically residing in the United States whose priority dates are significantly backlogged continue to benefit from this policy to be able to receive employment authorization documents and advance parole documents, and to potentially become eligible sooner for immigrant visa portability to change jobs while their employment-based adjustment of status is pending.

Although USCIS will continue to accept adjustment of status applications under the typically earlier filing cut-off dates, the applicant’s priority date must be current under the “final action cut-off date” before USCIS can finally approve the application.

The changes in the Final Action Cut-Off Dates from the December 2018 to the January 2019 Visa Bulletin include:

EB-1: All Chargeability Areas (except China and India)—Forward progress of three months to October 1, 2017

EB-1: China and India—Forward progress of three months and two weeks, to December 15, 2016

EB-2: China—Forward progress of two weeks to August 1, 2015

EB-3: Philippines—Forward progress of one week to June 22, 2017

Other Workers: China—Forward progress of one month to July 1, 2007

Other Workers: Philippines—Forward progress of one week to June 22, 2017

EB-5: China—Forward progress of one week to September 1, 2014

EB-5: Vietnam—Forward progress of one month to June 1, 2016

In both the EB-5 Regional Center and the EB-5 Non-Regional Center categories, the “Filing Cut-Off Dates” are Current for applicants born in all countries except for mainland China, which is backlogged to October 1, 2014, allowing for filing of adjustment-of-status applications for those with approved I-526 petitions who are residing in the United States.

In the EB-5 Non-Regional Center category, the “Final Action Dates” are current for all countries except China and Vietnam, which continue to be backlogged but with slight forward movement: currently backlogged at September 1, 2014, for China, and June 1, 2016, for Vietnam. However, the “Final Action Dates” for the EB-5 Regional Center category for all countries are “Unavailable” and immigrant visas cannot be issued right now because of the partial government shutdown discussed in the next article.

Applicants whose priority dates are backlogged should review the filing cut-off dates in the bulletin to determine if they may be eligible to file during the month of January. Applicants who will become eligible to file immigrant visa applications in January should initiate applications now with their Alliance of Business Immigration Lawyers attorney to plan for the earliest possible filing date.

2. Federal Government Shutdown: Agency-by-Agency Update

The partial federal government shutdown that began at 12:01 a.m. on Saturday, December 22, 2018, continues unabated. Several departments have issued related announcements about the specifics of which immigration services have closed and which remain open, summarized below in alphabetical order:

Department of Justice. DOJ released the following statement: “Due to the lapse in appropriations, Department of Justice websites will not be regularly updated. The Department’s essential law enforcement and national security functions will continue. Please refer to the Department of Justice’s contingency plan for more information.” The contingency plan, dated September 2018, is here.

Department of State. DOS announced on December 22, 2018, that scheduled passport and visa services in the United States and at U.S. embassies and consulates overseas will continue “during the lapse in appropriations as the situation permits.” The agency said it will not update its website until full operations resume, with the exception of urgent safety and security information. The National Visa Center, National Passport Information Center, and Kentucky Consular Center will still accept telephone calls and inquiries from the public.

All passport agencies and centers and acceptance facilities (such as U.S. post offices, libraries, and county clerk’s offices) are still accepting applications for U.S. passport books and passport cards during the shutdown, and passports can be renewed by mail, DOS said. Processing times remain the same: four to six weeks for routine service and two to three weeks for expedited service.

Those who have scheduled appointments at a DOS passport agency or center should plan on keeping their appointments, the agency said. Those who need to cancel their appointments at those places may do so by calling 1-877-487-2778 or visiting the Online Passport Appointment System here. Those who have scheduled appointments at a passport acceptance facility and need to cancel should contact the facility directly; see https://iafdb.travel.state.gov to search for a local facility.

Executive Office for Immigration Review—immigration courts. With respect to the operating status of immigration courts during the shutdown, EOIR said that detained docket cases will proceed as scheduled. Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.

U.S. Citizenship and Immigration Services. USCIS said that the shutdown does not affect USCIS’s fee-funded activities. USCIS offices remain open and all applicants should attend their interviews and appointments as scheduled, the agency said. The lapse in government appropriations does not affect Form I-9 Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other I-9 requirements.

USCIS noted that several USCIS programs have either expired or suspended operations, or are otherwise affected, until they receive appropriated funds or are reauthorized by Congress. The program-specific announcements are summarized below:

EB-5 Immigrant Investor Regional Center Program. The EB-5 Immigrant Investor Regional Center Program expired at the end of the day on December 21, 2018, due to a lapse in congressional authorization to continue the program. All regional center applications and individual petitions are affected. USCIS will not accept new Forms I-924, Application for Regional Center Designation Under the Immigrant Investor Program, as of December 21, 2018. Any pending Forms I-924 as of that date will be put on hold until further notice. Regional centers should continue to submit Form I-924A, Annual Certification of Regional Center, for fiscal year 2018. USCIS said it will continue to receive regional center–affiliated Forms I-526, Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status. USCIS has put unadjudicated regional center–affiliated Forms I-526 and I-485 (whether filed before or after the expiration date) on hold for an undetermined length of time. All Forms I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, filed before or after the expiration date will not be affected by the expiration of the program. USCIS said it will provide further guidance if legislation is enacted to reauthorize, extend, or amend the regional center program.

The announcement about the EB-5 program is here, in English with a link to a PDF in simplified Chinese.

E-Verify. Services are unavailable due to the shutdown, USCIS said. Employers’

E-Verify accounts are also unavailable, so employers will not be able to enroll in E-Verify; create an E-Verify case; view or take action on any case; add, delete, or edit any user account; reset a password; edit company information; terminate an account; or run reports. Also, employees will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs). E-Verify said that the agency understands that E-Verify’s unavailability may have a “significant impact on employer operations.” To minimize the burden on both employers and employees, the agency has implemented the following policies:

The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.

The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving a TNC.

USCIS said it will provide additional guidance regarding the “three-day rule” and time period to resolve TNC deadlines once operations resume.

Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.

Conrad 30 waiver for J-1 doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the United States; it is not a shutdown of the Conrad 30 program entirely.

Non-minister special immigrant religious workers. This category allows non-ministers in religious vocations and occupations to immigrate or adjust status in the United States to perform religious work in a full-time, compensated position. The EB-4 non-minister special immigrant religious worker program expired due to a lapse in congressional authorization to continue the program. USCIS will reject any Form I-360 Special Immigrant petitions for Non-Minister Religious Workers received on or after December 22, 2018. Petitions received by USCIS before that date but not issued a final decision before December 22, 2018, will be placed on hold in case the program is reauthorized.

More information about the special immigrant religious workers program and expiration is here.

U.S. Citizenship and Immigration Services (USCIS) announced that it is discontinuing use of USCIS service center emailboxes for case-specific questions as of January 21, 2019. Instead, USCIS is directing people to its online self-help tools and the USCIS Contact Center.

4. ICE Arrests 163 in Recent Enforcement Actions in New Jersey, New England

In several recent enforcement actions, U.S. Immigration and Customs Enforcement (ICE) arrested 163 people in New Jersey and the New England region of the United States. Following are highlights:

New Jersey. ICE arrested 105 people in a New Jersey operation targeting criminal aliens and public safety threats, the agency reported. Four individuals in the United States without authorization who have Interpol warrants based on crimes they committed in their home countries were among the 105 foreign nationals taken into custody during a five-day operation in New Jersey (and including two individuals arrested in New York). The action was spearheaded by ICE’s Enforcement and Removal Operations (ERO) and targeted “at-large criminal aliens, illegal re-entrants and other immigration violators.” It was supported by ICE’s Homeland Security Investigations (HSI) and U.S. Customs and Border Protection’s (CBP) New Jersey Field Office.

New England. Officers from ICE’s ERO Boston arrested 58 people in enforcement activities during a five-day period, ending December 4, 2018, in the New England region. Of the 58 individuals arrested by ICE’s ERO for violating U.S. immigration laws:

30 had prior felony convictions for serious or violent offenses;

33 had criminal charges pending;

15 individuals were previously released from local law enforcement custody, correctional facilities, and/or court custody with an active detainer;

9 were referred for criminal prosecution to the U.S. Attorney’s Office in the jurisdiction; one was referred to the U.S. Marshals for failure to register as a sex offender as required by federal law;

9 of those arrested had been previously removed from the United States and returned without authorization; and

4 had active Interpol Red Notices.

Criminal histories of those arrested during the operation included charges and convictions for: murder, aggravated identity theft, assault, attempted assault, cocaine possession, cocaine trafficking, DUI, and multiple other categories of crimes. The arrestees included nationals from the Dominican Republic, Brazil, France, Jamaica, Haiti, and Antigua, among other nations.

The ICE announcement about the New Jersey action is here. The ICE announcement about the New England action is here.

The Department of Justice (DOJ) announced that it has reached a settlement agreement with Mrs. Fields’ Original Cookies Inc. (Mrs. Fields), headquartered in Broomfield, Colorado. Mrs. Fields’ brands produce, distribute, and sell specialty items, including cookies, brownies, and chocolates. The settlement resolves a claim that Mrs. Fields’ production and distribution center in Salt Lake City, Utah, violated the antidiscrimination provision of the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens when verifying their work authorization.

The DOJ’s investigation concluded that from at least March 21, 2016, to March 20, 2017, Mrs. Fields required lawful permanent residents to provide specific documentation issued by the Department of Homeland Security to prove their work authorization, while not imposing this requirement on U.S. citizens. The DOJ noted that all work-authorized individuals, regardless of citizenship status, have the right to choose which document to present from a range of valid documents to demonstrate their authorization to work in the United States.

Under the settlement, Mrs. Fields will pay $26,400 in civil penalties to the United States and be subject to DOJ monitoring and reporting requirements. In addition, certain employees must attend training on the INA’s antidiscrimination provision.

6. House Unanimously Passes Bill to Extend E-3 Visas to Irish

On November 28, 2018, the U.S. House of Representatives unanimously passed H.R. 7164 to extend E-3 visa eligibility to Irish nationals. The bill was sponsored by Reps. James Sensenbrenner (R-Wis.) and Richard Neal (D-Mass.).

The proposed legislation would give eligible Irish nationals the opportunity to work in the United States under the nonimmigrant E-3 visa category, previously reserved only for Australian nationals under a trade agreement with the United States. Ireland has proposed a reciprocal work visa specific to U.S. nationals so that those wanting to live and work in Ireland can more easily do so.

In a statement announcing passage of the bill, Rep. Sensenbrenner noted that if it becomes law, Irish applicants outside the United States could apply directly at a U.S. consulate, avoiding lengthy processing times. The visas would be granted for two-year periods (renewable indefinitely), and the spouses of E-3 visa holders would be permitted to apply for employment authorization documents.

Currently, 10,500 E-3 visas are allocated each year; half are used by Australians. The legislation would allow Irish nationals to apply for those visas unused by Australian nationals.

Rep. Sensenbrenner said, “This significant addition to the U.S. immigration system will not only benefit Irish nationals seeking employment in the United States, but also ease restrictions on Americans wanting to live or retire in Ireland.” He noted that the proposed legislation “does not increase the number of visas that are authorized in total. It merely allows the Irish nationals to apply for the visas that Australian nationals do not want to use on a year-to-year basis.”

To become law, the bill will need to pass the Senate and then be signed by the President.

7. 13 New York Companies Join ICE's IMAGE Program

Thirteen New York-based businesses have joined U.S. Customs and Immigration Enforcement’s (ICE) employment compliance program, IMAGE (ICE Mutual Agreement between Government and Employers).

Five corporations, each individually owning one 7-Eleven franchise, joined the IMAGE program. Combined, these companies employ approximately 60 individuals. Four of the locations are located on Long Island and one is located in Manhattan.

Others joining IMAGE include Greenman-Pederson, Inc. (GPI) and its four subsidiary corporations, headquartered in Babylon, New York, which has over 40 offices throughout the United States. GPI provides services for bridges, building systems, construction management, civil and site engineering, environmental, highway, traffic, water and waste systems, surveying and mapping, and planning and design.

Another company that recently joined IMAGE is Compass Workforce Solutions, a human resources company headquartered in Hauppauge, New York. Compass provides human resource services to smaller companies headquartered in New York and Northern New Jersey, including services for those companies’ employees across the United States.

Also joining IMAGE is Strategic Security Corp. (SSC), a nationwide security firm headquartered in Commack, New York. SSC has approximately 600 employees and includes the U.S. government (the Federal Emergency Management Agency and the Securities and Exchange Commission) and some Fortune 500 companies among its clients. The company provides security services and risk reduction through guarding, executive protection, and intelligence.

McAllister Towing & Transportation Company, Inc., and its 13 subsidiaries also joined IMAGE. They operate a fleet of tugs, barges, and ferries in all major East Coast ports of the United States, including but not limited to New York, Philadelphia, Boston, Baltimore, Charleston, Port Everglades, and San Juan.

ICE initiated the IMAGE program in 2006. To qualify for IMAGE certification, companies agree to conduct a self-assessment of their hiring practices to uncover vulnerabilities that could be exploited by unauthorized workers; enroll in E-Verify; train staff on IMAGE Best Employment Practices and the use of new screening tools; and undergo a Form I-9 audit by ICE.

Upon enrollment in and commitment to the IMAGE Best Employment Practices, program participants are deemed “IMAGE certified,” a distinction the Department of Homeland Security and ICE “believe will become an industry standard.” ICE noted that IMAGE also “provides free training to all employers on the provisions surrounding the Form I-9, fraudulent document detection, and building a solid immigration compliance model.”

ICE’s announcements are here and here. Additional information about the IMAGE program is here.

8. Klasko News

FIRM NEWS

Klasko Immigration Law Partners is pleased to have been ranked by U.S. News – Best Lawyers® as 2019 “Best Law Firms” nationally and regionally. To read the firms news post and press release, click here.

IN THE NEWS

Anu Nair’s EB-5 Blog Featured in India Life & Times – Anu details the steps of the EB-5 process for Indian Nationals in this blog, which was recently published in India Life & Times.

Klasko’s Recognition Published by the Digital Journal The Digital Journal picked up the firm’s announcement of its inclusion in the 2019 list of “Best Law Firms” in Immigration Law. Read more here.

Bill Stock Quoted in Forbes Article Bill speaks with Forbes about the Supreme Court’s possible overturning of previous rulings and how that might impact USCIS H-1B policies. Read more here.

RANKINGS

Klasko Snags Two Rankings in the 2019 U.S. News – Best Lawyers® Best Law Firms The firm was ranked Tier 1 in the regional category and Tier 2 in the national category for 2019 U.S. News Best Immigration Law Firms, an increase from previous years’ rank.

UPCOMING SPEAKING ENGAGEMENTS

Feige M. GrundmanFeige will be discussing the new unlawful presence policy and how it impacts international students as workers at Bryn Mawr College on January 7th.

Feige M. GrundmanOn January 8th, Feige will be speaking at a lunch and learn event for the National Association of Legal Secretaries, covering the latest trends and hot topics in immigration.

Anu NairOn January 15th, Anu Nair will be a panelist at an event hosted by the Indian American Chamber of Commerce regarding the EB-5 Investor Program.

Elise FialkowskiElise Fialkowski is speaking at the Compliance in Global Immigration Practice conference in Budapest, Hungary, from January 18th to the 21st sponsored by the AILA Global Migration Section and the Center for International Legal Studies. Elise’s panel, “Tips and Tricks for a Stress-Free Audit” will cover global immigration audits including a review of document and record-keeping requirements, penalties, and sanctions as well as best practices to ensure compliance and effective audit response.

Michele G. MaderaMichele Madera will be speaking to the AILA New Members Division providing a CLE on I-9 Reviews and Audits on January 31st.

ICYMI: RECENT BLOG POSTS AND ALERTS

USCIS Proposes New Policy That Will Change Current H-1B Program Regulations Bill Stock and Steve Miller, editor for the firm’s EB-1 team, reflect on DHS’s December 3rd notice of proposed rulemaking that would put in place an electronic pre-registration system for cap-subject H-1B filings as well as reverse the order of selection for cap and advanced degree cap–subject petitions. Read more here.

CLIENT ALERT: Effects of a Potential Government Shutdown on Immigration Processing and ProgramsBill Stock issued this client alert on the government shutdown and its effect on immigration agencies before it became a reality. Read full alert here.

Frequent International Business Travel? Why the Visa Waiver Program (VWP) May Not Be the Best Option Lisa Felix provides extensive information on VWPs and describes certain circumstances in which this program may not be beneficial in this article published by the Legal Intelligencer. Read article here.

CLIENT ALERT:E-Verify Offline During Government Shutdown Michele Madera issued an additional client alert specifically covering the effect of the government shutdown on E-verify. Read full alert here.

FIRM FEATURE

Klasko’s End of Year Donations and Celebrations

On December 14th, the firm donated a small mountain of toys to the 2018 Holiday Toy Drive coordinated by the Support Center for Child Advocates. This year’s contributors were treated to a special hot chocolate bar once the toys were picked up. On December 21st, the entire firm gathered to celebrate another year of furthering its mission at Howl at the Moon. Drew Zeltner kicked off the celebrations as Master of Ceremonies; trophies were awarded, hidden karaoke skills were revealed, and fun was had by all.